10th Circuit rules Utah has authority to ban foreign waste

By Amy Joi O'Donoghue , Deseret News

Published: Sunday, Aug. 2 2015 5:15 p.m. MDT

DENVER — The 10th Circuit Court of Appeals ruled Tuesday that Utah has the legal authority to prevent the importation of nuclear waste from Italy, agreeing with the state's contention that EnergySolutions is bound to abide by the dictates of a regional compact.

The Salt Lake City-based company had sought to bring about 1,600 tons of the foreign waste into the state for disposal at its Clive facility, arguing the restrictions imposed by the Northwest Interstate Compact on Low-Level Radioactive Waste did not apply because the storage site does not meet the legal definition of a "regional disposal facility."

Although the ruling is a victory of sorts for Utah, it is a moot point because in July, the company announced it was abandoning its plans to pursue storage of the waste.

"The company is pleased that the court has now clarified its relationship with the eight-state regional compact, with which the company has had a long, mutually satisfactory working relationship," said EnergySolutions' president and CEO Val Christensen.

"The court's ruling will have no impact on the domestic business the company has been doing in cooperation with the compact and the state of Utah since its inception."

The state had argued unsuccessfully before U.S. District Judge Ted Stewart that the company fell under the purview of the regional compact, which can regulate the type of waste that can be stored.

EnergySolutions, represented by recently elected GOP Sen. Mike Lee, countered that Congress never envisioned such constraints when it passed legislation creating the compacts, which are designed in part to ensure no single state is left disproportionately bearing the brunt of storing low-level nuclear waste.

In the decision issued Tuesday, the appellate court based part of its ruling on the premise that Utah conditionally granted the license for EnergySolutions to accept waste because it fell under the purview of the regional compact.

"From what the record indicates, it is unlikely Utah would have agreed to issue the necessary licenses if it was powerless to control the flow of waste past its borders. Why would any other state behave differently in the future?" the decision reads. "Indeed, were the states to lose exclusionary authority, they would refuse to license facilities in the first place or to relicense them after the fact with necessary limitations."

"This is a huge victory for Utah," said Vanessa Pierce, executive director of the Healthy Environment Alliance of Utah. "With Judge Stewart's ruling, we were vulnerable to EnergySolutions bringing in hotter classes of waste. We were vulnerable to new and unforseen waste streams coming in and larger waste streams."

Pierce noted that an agreement signed by EnergySolutions and former Gov. Jon Huntsman Jr., which Gov. Gary Herbert's office says it still considers in effect, uses the threat of the Northwest Compact's veto power to keep the Clive facility from expanding.

"Fundamentally, the compact preserves Utah's ability to say no to certain types of nuclear waste or larger quantities of waste. Without that, we were stripped of our rights," Pierce said.